Allahabad High Court
Misri Lal vs The State Of U.P. on 8 June, 2017
Bench: Kaushal Jayendra Thaker, Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
Court No. - 15
Case :- CRIMINAL APPEAL No. - 1190 of 2005
Appellant :- Misri Lal
Respondent :- The State Of U.P.
Counsel for Appellant :- Rishad Murtaza,Anita,Gauri Suwan Pandey,U.P. Singh,Vinod Kumar Singh
Counsel for Respondent :- Govt.Advocate,Basant Lal,Dilip Kumar
WITH
Case :- CRIMINAL APPEAL No. - 1100 of 2005
Appellant :- Santosh
Respondent :- The State Of U.P.
Counsel for Appellant :- Rishid Murtaza,Alok Kapoor,Basant Lal,Dilip Kumar
Counsel for Respondent :- Govt.Advocate
WITH
Case :- CRIMINAL APPEAL No. - 1082 of 2005
Appellant :- Ram Khelawan Alias Bhagtu
Respondent :- State Of U.P.
Counsel for Appellant :- Rishad Murtaza
Counsel for Respondent :- Govt.Advocate
******
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Vivek Chaudhary,J.
1. All these three appeals arise out of a common judgment. These appeals are preferred under Section 374 (2) of Criminal Procedure Code. Appellant of Appeal No.1190 of 2005 is in jail. He is being represented by Amicus Curiae, who has been appointed by the Court to assist the Court. The accused is in jail since more than twelve years.
2. The appeal (Case :- CRIMINAL APPEAL No. - 1100 of 2005) is segregated from the connected appeals as we have waited from four days but learned counsel for appellant has not turn up. Hence, we are left with no alternative but to issue non-bailable warrant and appellant should be produced in custody before this Court as expeditiously as possible so that his appeal can be heard and decided.
The appeal (Case :- CRIMINAL APPEAL No. - 1082 of 2005) is segregated from the connected appeals as we have waited from four days but learned counsel for appellant has not turned up. Hence, we are left with no alternative but to issue non-bailable warrant and appellant should be produced in custody before this Court as expeditiously as possible so that his appeal can be heard and decided.
Though called out the counsels for the other appellants, who are on bail, have not appeared before the Court, therefore, we propose to hear the appeal of the accused who is in jail since about more than twelve years.
3. The facts are on the fateful night a Complaint being 307 of 1998 for commission of offence under Section 307/394/34 I.P.C. against Mishri Lal, Santosh Kumar and Ram Khelawan was lodged. The deceased was an operator in the Canal Department of State of U.P. The deceased along with his brother Sri Ram took their dinner at about9.00 p.m. and went to home Shiv Kumar has owned licensee gun with him. As soon as the complainant Shiv Kumar went ahead and Mishri Lal, Santosh Kumar and Ram Khelawan came there and started shouted that Krishna Kumar be done to death and one bullet shot was fired on left shoulder and he fell down on the ground. On hearing the noise of the firearm the complainant Shiv Kumar and Krishna Kumar came there. Many people gather to gather all the three accused took away licensee gun of the deceased and running away on the northern side of the village. The complainant and other witnesses saw both accused in moon light. The complaint was lodged on 04.12.1998 unfortunately the inured was re-hospitalized on 01.01.1999 and died on 12.01.999. His post-mortem was conducted by the doctors i.e. all the accused were charged of Section 302 I.P.C. read with Section 394 I.P.C..
4. The procedural facts as they are culled out from the record are that an incident occurred on 03.12.1998, at about 9.00 p.m. at night when the present appellant along with other co-accused attacked the deceased and it was Mishri Lal, who fired the gun shot and injured the deceased. A First Information Report came to be registered on the very same night. The investigation started and it culminated into the charge-sheet being laid before the competent authority. The competent authority committed the case to the court of Sessions as it was a sessions triable offence. When the offence was registered it was for Section 394 read with Section 34 Indian Penal Code but later on as a deceased succumbed to injuries the charge-sheet was laid under Section 302 Indian Penal Code The accused were charged by the trial court and they pleaded not guilty and wanted to be tried.
5. The prosecution examined about five witnesses, namely, Sri Ram PW-1 complainant, Ashok Kumar PW-2, Anoop Kumar PW-3, Ajay Kumar Singh PW-4 and Constable 358 Sanjay Singh PW-5. The prosecution relied on ten documents, which are as follows:-
1. Written Report Ext. Ka-1 182. Site Plan Ext. Ka-2 19-20
3. Recovery Memo Ext. Ka-3 to 5 21-23 4. Statement Ext. Ka-6 24
5. Recovery Memo Ext. Ka-7 to 8 25-26 6. FIR Ext. Ka-10 29 7 Copy of Report Ext. Ka-11 29 8. Death Certificate Ext. Ka-12 30
9. Inquest Report Ext. Ka-13 31-33
10. Post Mortem Report Ext. Ka-18 34-35
6. After evidence of the prosecution was over, the accused were questioned as per the provision of Section 313 Cr.P.C. and except denied and no other rebuttal evidence was produced.
7. Learned counsel for the appellant has submitted that the deceased died after about thirty nine days of the incident, and therefore, it would not fall within the purview of Section 302 I.P.C. and to fall within the purview of culpable homicide. When going through the evidence, it is very clear that the medical evidence would have to be discussed and dealt with in its true perspective.
8. On delving with the facts, it is admitted position of fact that the deceased died after about thirty nine days of the incident. The post-mortem report show that he died out of septicemia.
9. The medical evidence is of vital importance in this case so as to come to the finding as the cause of death. The injuries as per the post-mortem report are as follows:-
1. Septic wound 2.5 cm x 2.5 cm x muscledeep present on rt. side back of chest, 5 .00 cm below, rt. scapula.
2. Septic wound 2.00 cm x 2.00 cm shin deep present on rt. side of back, 6.00 cm below injury no.1.
3. Septic wound (Bed sore) 9.00 cm x 7.00 cm below, present at lowest back at mid line.
4. Septic wound 3.00 cm. X 3.00 cm x abdominal cavity deep present on outer aspect of left side of abdomen, 7.00 cm above left iliac crest, on opening pus released. Grandsing tissue present in wounds noted above. Healed scar mark present in front of abdomen at midline.
Opinion:- Peritoneum ruptured, sputum and lim lacerated about 500 ml. Pus mixed blood present in abdominal cavity.
and it was not on the vital part of the body but it cannot be said that they did not have any knowledge that it would not be fatal.
10. Learned counsel for appellant submitted that in light of the latest decision of Apex Court in the case of Sanjay vs. State of Uttar Pradesh reported in (2016) 3 SCC 62 submits that the offence under Section 394 read with Section 302 I.P.C. is not proved and benefit of doubt should be given to the accused.
11. On operation of evidence this Court feels that the benefit of doubt cannot be given. Submission that case of Mishri Lal be considered under Section 304 Part-I or Part-II of Indian Penal Code as the firing was not with an intention to kill the deceased on facts requires to be scrutinized.
12. Now that takes us to what offence the original accused is said to have committed. In the facts and circumstances of the case and the injuries sustained by (deceased) at the relevant time and the manner in which the original accused had caused the injury, who died subsequently after about thirty nine days, it cannot be said that a case is made out under Section 302 of the Indian Penal Code. From the entire evidence on record and the surrounding circumstances which led the accused to commit the offence and/or cause injury on the deceased which ultimately proved to be fatal, we are of the opinion that it cannot be said that the case would fall under section 299 or 300 of the IPC.
13. In the scheme of the IPC culpable homicide is genus and ''murder' its specie. All ''murder' is ''culpable homicide' but not viceversa. Speaking generally, ''culpable homicide' sans ''special characteristics of murder is culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognize three degrees of culpable homicide. The first is, what may be called, ''culpable homicide of the first degree'. This is the gravest form of culpable homicide, which is defined in Section 300 as ''murder'. The second may be termed as ''culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is ''culpable homicide of the third degree'. Culpable homicide and the punishment provided for it is also is the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. The academic distinction between ''murder' and ''culpable homicide not amounting to murder has always vexed the Courts. The confusion is caused, if Courts start losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.
Section 299 A person commits culpable homicide if the act by which the death is caused is done-
Section 300 Subject to certain exceptions culpable homicide is murder is the act by which the death is caused is done.
INTENTION
(a) with the intention of causing death; or (1) with the intention of causing death; or
(b) with the intention of causing such bodily injury as is likely to cause death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused;
KNOWDLEGE (c) with the knowledge that the act is likely to cause death.
KNOWLEDGE (4) with the knowledge that the act is so immediately dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.
Clause (b) of section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the ''intention to cause death' is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to section 300. Clause(b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300, instead of the words ''likely to cause death' occurring in the corresponding clause (b) of Section 299, the words ''sufficient in the ordinary course of nature' have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause(b) of Section 299 and clause(3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word ''likely' in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury..." sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the internal bodily injury or injuries sufficient to cause death in the ordinary course of nature.
14. On the tough stone of aforementioned decision and on the basis of the latest decision of Apex Court in the case of Sanjay vs. State of U.P. (supra), in this case also the prosecution did not elicited by prosecution from doctor treating deceased, that such injury was sufficient in ordinary course of nature to cause death. Hence, it appears that the prosecution has not got home the charge under Section 300 of Indian Penal Code but in the instant case as a death occurred after so many days of occurrence due to septicaemia but was indirectly due to injuries sustained by the accused. The deceased was stable when he was first discharged from the hospital, and thus, intended enough injury cannot be said to be sufficient in ordinary course of nature to cause death so as to attract S.300 Thirdly IPC. Thus, we hold him guilty of Section 304 Part-I read with Section 394 of Indian Penal Code.
15. In that view of the matter while going through the evidence, it is clear that the accused had no intention to do away with the life of the deceased wound apply to the facts of this case and recently Apex Court in Raghunath vs. State of Haryana reported in AIR (2003) SC 165 has held that if two views are possible, the one which is favouring the accused to be adopted. In this case, while going through the record and the testimony, it is evident that there was no common intention to kill the deceased.
16. Learned counsel for the State could not persuade us to substantiate the punishment under Section 394 I.P.C., hence, the prosecution has failed to establish the ingredients of Section 394 I.P.C. and the accused is acquitted under Section 394 I.P.C.
17. As far as Section 394 I.P.C. is concerned, we are convinced that there was no recovery of Double Barrel Gun, which is alleged to have been robbed by the accused from deceased, in furtherance of their common intention of committing robbery.
18. Once the weapon itself is not recovered it causes a doubt and, therefore, the learned trial Judge has committed an error in holding the accused guilty for robbery of the Double Barrel Gun belonging to the deceased, we are unable to hold him guilty under Section 394 Indian Penal Code. The evidence goes to show that none of the witnesses have consequently proved that the Double Barrel Gun was robbed by the accused.
19. The fine is reduced to Rs.1000/- each under Section 304 Part-I I.P.C. and in default of payment of fine, he shall serve sentence for a period of six months S.I. which would be counted from completion of ten years with remission, if he has served out his term, he should be released forthwith if not wanted in any other offence. He would be entitled to all remission available to under trial accused as well as past conviction of the accused also.
20. In view of above, the appeal is partly allowed.
21. Record be sent to trial court.
22. Copy of this judgment to be sent to the concerned authorities as per provisions of Criminal Procedure Code.
Order Date :- 8.6.2017
Suresh/
(Vivek Chaudhary, J.) (Dr. Kaushal Jayendra Thaker,J.)